By Patrick Galey

Saturday, February 05, 2011

BEIRUT: The court charged with trying the assassins of former Prime Minister Rafik Hariri will hold a public session Monday to address legal issues which could affect the passage of future trials.

The Special Tribunal for Lebanon will discuss questions raised by pretrial judge Daniel Fransen over prosecutor Daniel Bellemare’s first indictment document, issued confidentially last month. The session in The Hague is likely to deal only with legal subjects and will not name any individuals contained within the indictment, the tribunal said Friday.

“The purpose of the hearing is to allow the Prosecution and the Defense Office to provide orally their views on the questions raised by the pretrial judge,” a briefing on the session said. “(The Defense Office does not represent any individual accused, but rather the general interests of all future accused.)

“There will be NO mention of the name/names or particulars of any individual mentioned in the indictment, or any facts relating to the evidence supporting the indictment,” it said.

Bellemare issued the court’s first indictment in confidential documents to Fransen on Jan. 17. The details of the indictment are not expected to be made public, even after the dossier is confirmed by the pretrial judge.
Four days later, Fransen raised a number of legal questions with the court’s Appeals Chamber, ostensibly to ensure that individuals accused have the law applied consistently throughout their respective hearings.

The U.N.-backed court is the world’s first to be given the ability to try counts of international terrorism. Its statute stipulates that Lebanese Criminal Code (LCC) law will be applied in trial wherever possible, although international legal norms can be applied to “fill in any gaps that may remain,” if required.

The complexity of the multinational investigation into the car bomb which killed Hariri and 22 others on Feb. 14, 2005 – as well as the intricacies of the crime itself – have led to a number of legal anomalies which must be addressed before trials can commence, possibly as soon as September.

Bellemare, as a former head of the U.N. International Independent Investigation Committee and current tribunal prosecutor, was required to have found prime facie evidence against individuals before submitting his indictment.

But under the tribunal statute, any prosecution must prove an individual guilty of killing Hariri “beyond reasonable doubt,” a different standard of proof. There is no legal guarantee that Bellemare’s indictment will be accepted, given that burdens of proof between investigative and judicial stages vary, although legal experts say any rejection is unlikely.

The tribunal “covers multiple criminal acts in circumstances where they were probably perpetrated by numerous persons within an organized and disciplined group with access to the means, knowledge and sophistication to be able to carry out such attacks,” Bellemare wrote. “Potential cases are highly likely to be complex both in fact and in law.”

A tribunal spokesperson told The Daily Star that the Appeals Chamber – which includes two Lebanese judges – would make its decision “within a matter of weeks.”

“The judges in the Appeals Chamber will consider the arguments of both parties and then reach their conclusions,” the spokesperson said. “I cannot speculate on what the Appeals Chamber will decide.”

Several key issues are likely to be discussed Monday, such as whether suspects could be tried cumulatively (i.e. for several different crimes at once) or alternatively (for one charge at a time).

Bellemare stated in his submission to the Appeals Chamber that cumulative charges were permissible, something yet to be accepted by the court.

Although it is not clear whether some or all of these charges were applicable to indicted individuals, Fransen referred in his submission to the following offenses: “terrorist conspiracy, terrorist acts, intentional homicide and premeditation and attempted homicide.”

A singular act – such as planting and detonating a bomb on a busy street in broad daylight in order to kill a statesman – can, according to the LCC, be defined as several crimes and, Bellemare has argued, tried concurrently.
In his submission, Bellemare also points out that there is currently no universal definition of terrorism.

In the aftermath of Hariri’s death, accusations flew, including from current caretaker Prime Minister Saad Hariri, Rafik’s son, that the assassination was a political act executed upon orders from Damascus. Hariri has since retracted this claim, although allegations still abound concerning Syrian involvement in several assassinations that rocked Lebanon between 2002 and 2007. Hezbollah secretary general Sayyed Hassan Nasrallah has said he expects party members to be contained in Bellemare’s indictment list.

When asked by Fransen if political motive was required for an act of terrorism, Bellemare responded: “A review of international instruments does not suggest there must be a political motive … Moreover, requiring motive to be proved beyond a reasonable doubt in a criminal trial is unduly burdensome and may undermine international efforts to legally condemn acts of terrorism.

“The purpose of criminalizing these acts is to condemn them, not to comprehend them,” Bellemare wrote.
The tribunal has repeatedly declared that any guilty parties will be treated as individuals, not as part of groups or regimes.